Posted On: November 9, 2012 by Shorstein & Lasnetski

Jail Calls and Jail Visit Conversations May Be Recorded and Used as Evidence at Trial

When a person is in jail while his/her criminal case is pending, he/she will be permitted to make phone calls to people on the outside and have periodic visits with them. In Jacksonville, Florida, there is a recording before each phone call which tells the inmate that the conversation is being recorded and anything he/she says can be used against him/her in court. As a result, anyone who has been charged with a crime and has a pending case should be very careful what is said on a jail call because it could come back to haunt him/her if the recording of the conversation is played at the trial to the jury. Incriminating admissions and inconsistent statements on a jail call could make a significant difference in the outcome of a criminal case.

Sometimes, it is not as clear that the police are listening in. In a recent case near Jacksonville, Florida, the defendant was arrested for aggravated battery, After his arrest, his mother came to the police station to speak with him. The police let the defendant and his mother talk alone in a room. Prior to putting the defendant and his mother in the room, the police hid a tape recorder in the room to record their conversation. During the secretly taped conversation, the defendant made some incriminating admissions to his mother. These recorded statements were used against the defendant at his trial.

The criminal defense lawyer filed a motion to keep the recorded conversation out of the trial. The issue as to whether a secretly recorded statement of the defendant could be used against him depends on whether the defendant had a reasonable expectation of privacy when he was in the room with his mother. If the defendant could reasonably expect that the conversation was private and no one could hear it, then the conversation would not be admissible. However, if the defendant did not have a reasonable expectation of privacy, then the conversation could be used at trial even though it was secretly recorded.

The judge found that the defendant did not have a reasonable expectation of privacy in that room. While the two were alone and no one told the defendant that his conversation would not be private, there was no indication by the police that the conversation would be private. The room was not labeled private, and none of the police officers told them they would have some privacy. To the court, this was simply the police accommodating the mother asking to speak with her son in a police station. Since there was no indication of privacy, the police could listen in to the conversation, whether by standing outside the door or placing a secret recorder in the room.